Adare Human Resource Management CommentaryCase Law from the Equality Tribunal always provides a useful reminder to Employers of the appropriate procedures that they should have in place in order to defend themselves against claims of discriminatory treatment under the Employment Equality Acts. In March, there were 2 successful claims leading to awards of €28,000 in total in financial compensation being made. The remaining claims were not upheld. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including access to employment, dismissal, terms and conditions of employment. We have highlighted two specific decisions in March of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts.

Complainant Dismissal Amounts to Discrimination on Grounds of Disability

The Complainant was employed by the Respondent from October 2009 as a waitress in their restaurant. The Complainant had been diagnosed with depression when she was a teenager and had through the years suffered episodes of depression but had not informed her employer of this fact.

The Complainant suffered a stint of depression in November 2011 and as a result missed work on 19, 20, 24 and 25 of November 2011. The Complainant texted her Employer on 18 and 23 of November to advise that she would be unable to attend work due to illness, however did not cite depression as the reason for her non-attendance. The Complainant submitted that on 24 of November a member of the Respondent’s staff Ms. N came to see the Complainant at her home and became aware of her condition.The Complainant stated that on 15 December 2011 she had met with her manager Ms. G and again disclosed details of her condition. On 22 December and again in January 2012 the Complainant provided sick certs to the Respondent stating that her absence was due to depression.

The Respondent claimed that the Complainant phoned on the night of 24 of November 2011 to advise that she would not be returning to work and resigned her employment. Nothing further was heard from the Complainant until 22 December when she came to the Respondents premises and submitted medical certificates to cover the period from 21 of December 2011.

At the hearing, the Complainant could not confirm or deny that she may have resigned but stated that she could not recall as she was suffering from a black out at this time which lasted for about 8 or 10 days in total. The Respondent submitted that the Complainant had during this phone call appeared to be under the influence of alcohol but confirmed that it took no follow up action at this time to clarify if the Respondent did intend to resign.

In January 2012 the Complainant met with the Respondent and was advised that she had completed employment. Later that month she received her p45 in the post. It stated that her employment had ended on 20 of November 2011 i.e. the second day of her sick absence.

In finding in favour of the Complainant, the Equality Tribunal found that it was clear the Complainant had been subjected to discrimination on grounds of her disability and that the Respondent had failed to provide her with reasonable accommodation given their awareness that the Complainant’s absence from work was attributed to her disability. The Complainant was awarded compensation of €18,000 for the discriminatory dismissal, the distress experienced by the Complainant and the failure to provide the Complainant with reasonable accommodation.

In finding the Respondent dismissed the Complainant in circumstances amounting to discrimination on grounds of her disability, it is clear the Employer in this instance, given their knowledge of the nature of the Complainant’s illness, failed to follow best practice and fair procedures and did not make appropriate enquiries to ascertain the extent of the Employees condition, likely duration of illness and accepted the Claimants alleged resignation without making any enquiries to assess the extent of her disability or whether appropriate measures or accommodation could be taken in order to allow the Complainant return to work when fit enough to do so.

Complainant not entitled to the same rate of remuneration as Colleague

This dispute involved a claim by the Complainant that she performed “like work” with two named male comparators and that she was therefore entitled to the same rate of remuneration paid to the Respondent.

In 1999 the Complainant was successful for promotion to grade 1V and in 2000 she was assigned to the position of assistant property manager. From 2001 onwards she reported to Mr. A. who was at the equivalent of Grade VIII.

The case was made to HR for an upgrade to grade VII and it was approved, but it never happened. An agreement known as the McDonald Agreement came into operation in 2007. This was an agreement between IMPACT and the HSE to sort out a problem in relation to acting up allowances. The Complainant could only qualify for one upgrade under this Agreement and she was upgraded to grade V The Complainant submitted that she had sole responsibility for arranging leases, rents, collecting rents, buying and selling property and the valuation of same and had responsibility for legal work in relation to about 200 properties in all.

The Respondent rejected the claim for equal pay, and submitted that the Complainant was not engaged in “like work” or work of equal value with the named comparators and were therefore not valid comparators for the purpose of claiming equal pay.

For example, in relation to comparator B, the Respondent submitted that he was recruited to the position in 2002 and he was required to have qualifications and experience in the property area. Mr. B was a Chartered Surveyor and was a property manager for the Eastern Region which included Dublin Wicklow and Kildare; he reported to the Estate Function and had 3 staff reporting to him. He managed a property portfolio of nearly 800 properties.

In determination of its findings, the court found that the Respondent did not discriminate against the Complainant regarding her conditions of employment on the gender ground contrary to Section 8(1) of the Acts and that the Complainant was not engaged in “like work” with the named male comparators and therefore was not entitled to the same rate of remuneration as the comparators?

The Employment Equality Acts prohibit discrimination in relation to conditions of employment which includes pay and benefits provided and essentially provide that where two or more persons are involved in the same work, or work of equal value, they should not be paid different rates based on any of the nine grounds e.g. in this case because one or more persons were male and the other is female. In this instance, the Respondent was successful in defending the claim as they were able to demonstrate that the differences in pay could be supported on objective grounds, such as the skills, knowledge and experience required for the role. __________________________________________________________________________________________

The Employment Equality Acts 1998 to 2012, outlaw discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment and victimisation at work are also covered by the Acts.

Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.

The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.

Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our Equality and Diversity services include

- Equality and Diversity Audit and Healthcheck

- Review and Development of Policies and Procedures - Dignity at Work, Anti-Harassment and Sexual Harassment